A bill making its way through the Florida legislature would push the state to the front of the anti-migrant pack if enacted. House Bill 9, titled the Rule of Law Adherence Act, bears the hallmarks of past attempts by other states to make life more difficult for migrants. If approved by the state’s Republican dominated legislature, Florida would rip the anti-migrant spotlight from Texas where its Senate Bill 4 is currently mired in litigation before the U.S. Court of Appeals for the Fifth Circuit.
Introduced by Republican Larry Metz, Florida’s bill targets so-called sanctuary cities through a host of threats and punishments. The state would withhold funding from most state governmental entities that limit cooperation with federal immigration officials and wouldn’t restore funding for five years. Local governments could be sued by people injured by unauthorized migrants. Cities, counties, and police forces would face fines of up to $5,000 per day for having a sanctuary policy on the books. Elected officials who “voted for, allowed to be implemented, or voted against repeal or prohibition” of policies that distance local governments from immigration policing would be targeted.
Like the Texas anti-migrant law, Florida’s proposal adopts a sweeping view of constitutionally questionable immigration detainers. H.B. 9 mandates compliance with all ICE requests made through a detainer. The bill implicitly acknowledges that detainers sit on a questionable constitutional foundation. At one point, the bill qualifies its own mandates by limiting compliance to what is “permitted by law.”
An almost unbroken line of judicial decisions has concluded that detainers violate one law or another. According to numerous courts, holding a person in jail or prison solely because ICE lodged a detainer violates the Fourth Amendment. A federal court in San Antonio took the view that a detainer must be accompanied by probable cause of criminal activity to comply with the Fourth Amendment. And the Massachusetts Supreme Judicial Court, that state’s highest court, held that nothing in state law authorizes cops to seize a person because of a detainer request.
Reflecting past efforts to target migrants through state legislation, H.B. 9 injects Florida law enforcement officers into immigration status verification. The bill requires cops to verify “proof of…unlawful presence in the United States” within forty-eight hours of an arrest. This task resembles the show-me-your-papers provision of Arizona’s infamous S.B. 1070. In its 2012 decision about S.B. 1070’s constitutionality, the Supreme Court upheld that section. S.B. 4 in Texas includes a similar clause. Building off the Supreme Court’s holding, the federal district court that enjoined large parts of S.B. 4 left the show-me-your-papers piece intact.
Though most of H.B. 9 tracks other anti-migrant laws, Florida’s proposal adds a new twist by attempting to place the financial cost of complying with detainers on migrants. The bill lets counties “require[e] a person detained pursuant to an immigration detainer to reimburse the county for any expenses incurred in detaining the person.” In effect, the law passes the cost of imprisonment onto imprisoned migrants. Right now, counties and cities that choose to help ICE do its job are stuck with the tab of detaining migrants. Despite this provision’s language, it’s hard to imagine a county receiving any money from an imprisoned migrant. Would the county sue the migrant? Garnish wages? Suing the migrant is of no use if the migrant has already been deported. Similarly, if the migrant is confined then deported, there are no wages to garnish. This position smells of nothing more than grandstanding.
As of November 9, 2017, H.B. 9 has made it out of committee and is awaiting debate on the floor of the Florida House of Representatives. The bill is currently featured prominently on the Florida House’s website through a splashy YouTube video.
Thanks to Peter Mancina for bringing this to my attention.
[January 26, 2018 Update: The Florida House of Representatives approved H.B. 9. In the Florida Senate, it has been marked as Senate Bill 308. It is scheduled for a hearing before the Florida Senate Judiciary Committee on January 30.]